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10 March 2011

The Statutory Nature of Copyright

It is fairly clear that "modern" copyright is a creation of statute, and in particular, the creation of the 1709 Statute of Anne. Although there did exist proto-copyright mechanisms in various parts of the world, it would appear that none of them were comparable to the form of copyright contemplated by the 1709 statute.

The changes which have been observed over the last three hundred or so years in the realm of copyright law have for the most part dealt with the nature of works protected, the nature of the protection granted to copyrightable works, and the length of time for which protection would be granted.

With respect to protectable works, it was only in 1735 that engravings began to be protected by copyright, and in 1862 that photographs were accorded protection. In terms of the rights granted to copyright owners, the scope of available protection under the law has increased considerably -- for example, copyright owners in contemporary times enjoy a full translation right and a wide right of adaptation among other rights such as the traditional reproduction right. And finally, with respect to the term of copyright protection, the term has often been extended in various jurisdictions with some even infamously considering extending the term of copyright protection to a day less than forever.

Despite these changes in the copyright law, what has remained fairly constant is the understanding that copyright is the creation of a statute. It is quite simply not a common law right, and there are no natural rights "in the form of copyright", so to speak.

There have, over the years, of course been attempts to claim that copyright exists independently of statute. In fact, the 1769 English case of Millar v. Taylor recognised the existence of a perpetual common law copyright, although (perhaps not too surprisingly) a Scottish Court of Session disagreed. In 1773, it categorically held that Scotland’s Common Law did not recognise copyright. A year later, the English House of Lords too rejected the existence of a perpetual common law copyright in Donaldson v. Beckett.

Nonetheless, the idea of copyright as a right independent of statute did not die and litigation on the subject continued in various jurisdictions. In fact, the question was brought up in the first copyright case before the Supreme Court of the United States in 1834 (which rejected the existence of a common law copyright).

In addition to this, there have, over time, also been attempts to claim that there exist customary rights which permit the copying of content protected by copyright in ways that copyright would not. Arguments that custom allows copyright to be violated have, however, consistently failed. In the 1814 case of Wyatt v. Barnard, Lord Eldon pointed out that custom could not control the law, and said, in rather unflattering terms, of a defendant who had copied content protected by copyright that ‘[t]he real defence set up by the Defendants is in fact a custom to steal, a practice against morals, that neither on principle nor authority can be adduced as a defence’. This did not completely prevent the infringement of copyright in the nineteenth-century though. The expense and investment required to generate their content often incentivised newspapers, for example, to indulge in unauthorised copying, and they relied on the acquiescence of those they copied from, along with nebulous notions of custom (which supposedly allowed copying), to protect them from legal liability. Judges were scathing though, and in the 1892 case of Walter v. Steinkopff, North, J went so far as to categorically state: “The plea of the existence of such custom, or habit, or practice of copying as is set up can no more be supported when challenged than the highwayman's plea of the custom of Hounslow Heath. It has often been relied upon as a defence in such cases, but always has been repudiated by the Courts.”

As such, copyright may be considered to be, without doubt, a statutory right, which is independent of both custom and common law. Nonetheless, there are arguments which support the contention that copyright could be considered to be a non-statutory right. For example, allusions could be made to the 1948 Universal Declaration of Human Rights which refers to authors' moral and material rights. Although it makes no specific mention of copyright, it is likely that copyright could fall within the scope of the material rights of authors.

Despite this, statutes such as the Indian Copyright Act state:

16. No Copyright except as provided in this Act.

No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.

It is unclear what the rationale behind the inclusion of this provision was. At first glance, it would appear that the provision was introduced into the statute so as to dispel any notions that copyright could possibly be a non-statutory right, particularly in light of the heading of the Section. Given the background of all the litigation which has taken place on the issue, it would seem reasonable for legislators to desire to clarify the legal position (that copyright is a statutory creation) through the language of the statute.

However, emphasising that copyright is a creation of statute does not by itself explain the provisions in Section 16. One possible interpretation of the key terms in the Section is:

"any work" refers to both published and unpublished works considering the placement of the commas in the provision. The mention of "published and unpublished works" is merely intended to dispel doubts about whether different provisions would apply to published and unpublished works, or whether Section 16 would, in its entirety, apply only to one or the other.

"the provisions of this Act or of any other law for the time being in force" means any law whether or not statutory.

"any similar right" means (a) any right which protects what could be a copyrightable work, or (b) any right similar to copyright protecting a non-copyrightable work. In relation to (a), photographs come to mind: they were not always considered copyrightable, and even after being accorded copyright protection, not all photographs were immediately considered to be eligible to be protected by copyright. In relation to (b), one could consider rights which are recognised by business practice but which are not explicitly recognised by copyright law such as format rights.

As far as the so-called neighbouring rights are concerned, it may also be possible to argue that "any similar right" does not include the performer's right as it is exercised in respect of a performance which is not a work, although the term "any similar right" could include the broadcast reproduction right as this latter right may be considered to be exercised in respect of a work which is broadcast [except, possibly, in the case of live broadcasts]. In consequence, it may be possible to legitimately argue that the performer's right is not exclusively a statutory right. [See note below.]

If these meanings and interpretations ascribed to the Section were valid, the Section would state (prior to the coordinate conjunction "but"): "A person would only be entitled to protect works in accordance the law." This is an amazingly broad (and inane) interpretation which perhaps defeats the ostensible intention of incorporating the Section into the statute at all. Further, considering how broad this interpretation of the provision is, it is unclear why it is required as it merely states the obvious -- not to mention that if one were to consider the second part of the Section, it is unclear how the first part of the Section could possibly be considered or interpreted to restrict "any right or jurisdiction to restrain a breach of trust or confidence" in any manner.

As such, in order for the Section to have any value (beyond stating the obvious), it would be necessary to limit the meaning of "any other law for the time being in force" to "any other [statutory] law for the time being in force". This would satisfy (a) the ostensible historical need for the Section, (b) the impression generated by the heading of the Section, and (c) the hope that the Section would have "value" beyond stating the obvious. Further, interpreting the Section such that "any other law" should be read as "any other [statutory] law" also provides value to the second part of the Section since breaches of trust or confidence in India fall under the realm of tort law, and not statutory law. Thus, in effect, the Section would, according to the second interpretation, mean that statutory law cannot limit tort law or common law, for the purpose of enforcing rights in works.

Thus, it appears that, considered as a whole, the Section states that rights must be derived from statute but whether or not so derived, actions for breach of trust or confidence would not be restrained. This is the only interpretation which allows for an action under tort law to be initiated in respect of a creative work in instances of breach of trust or confidence. And, in fact, although not clarified in case law, it would appear that this is the interpretation which courts follow, if one were to draw inferences from the mechanisms to protect format rights in India.

Whether or not a work has been published does not appear to be especially relevant to Section 16. The crux of the issue appears to be that Section 16 intends to explain the possible alternative mechanisms through which copyright and comparable rights may be protected. Unfortunately, in doing so, the Section does not appear to be entirely clear.

[Text in parenthesis, and note below, updated for clarity.]Note on Neighbouring Rights:Crucially, Section 16 of the Indian Copyright Act applies to ‘works’ alone. The term ‘work’ is defined in Section 2(y) of the Act as meaning “any of the following works, namely: (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording”. The definition is exhaustive, and not inclusive. Therefore, Section 2(y) of the Indian Copyright Act lays down the paramaters of Section 16 of the same statute in the first instance, and clearly demonstrates that Section 16 does not apply to anything which is not a work. In other words, Section 16 of the Indian Copyright Act does not apply to ideas and facts or anything else which does not constitute a work, and contracts relating to all such things would not be governed exclusively by the Indian Copyright Act.The scope of Section 16 of the Indian Copyright Act is also further limited by Section 39A of the same statute. This latter Section belongs to the Chapter of the Act which deals with the so-called ‘neighbouring rights’ and enumerates which provisions of the statute that apply to copyright would also apply, with necessary adaptations and modifications, to the neighbouring rights (i.e. the performer’s right and the broadcast reproduction right). Section 16 is not included in this list of provisions, and, as such, a bare reading of the text of the Indian Copyright Act indicates that the scope of neighbouring rights is not limited by the Copyright Act, and that the statute does not lay down limitations with regard to neighbouring rights.If one were to analyse the neighbouring rights, it could be argued that the performer’s right cannot possibly be limited by Section 16 of the Copyright Act being exercised, as it is, in respect of performances, which, quite simply, are not works. (Section 16, as explicated earlier, applies only to works.) With regard to the broadcast reproduction right, the situation may be more nuanced with differentiations being made between broadcasts of recorded works (such as cinematograph films and sound recordings) on one hand, and broadcasts of live broadcasts of performances and other events on the other hand. While convoluted arguments may be employed to argue that there is an indirect application of Section 16 of the Indian Copyright Act where recorded works are broadcast, there is no indication in the statute that Section 16 of the Indian Copyright Act applies to live broadcasts. Section 39A of the Indian Copyright Act, as mentioned earlier, explicitly omits Section 16 from the list of Sections in the Indian Copyright Act which apply to the performer’s right and the broadcast reproduction right.When it comes to comes to Indian statutory law, there appears to be no ambiguity regarding the preemption of claims not related to copyright in the text of the statute. The determinations of High Courts have, unfortunately, not been entirely consistent with each other, and the issue has not been conclusively determined by the Supreme Court of India.

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